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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY) YES' /NO
YES I NO
YE$ I NO
YES I NO
Case number: CA&R 25/2024
In the matter between:
THE STATE
and
SIMPHIWE EPHRIAN NCUBE
ANDILE ALVIN NTSHWELA
Neutral citation: The State v Ncube and Another(CA&R 25/2024) 09 May 2025.
Coram: Tlaletsi JP et Stanton J
Delivered: 05 May 2025
Summary: Special review in terms of s 304A of the Criminal Procedure Act 51 of
1977 -accused convicted of rape -prior to sentencing the magistrate expressed
doubts on the conviction of the accused as not being in accordance with justice
following the evidence of the complainant after conviction -s 304A to be applied
sparingly and in those cases where the continuation of a case to its conclusion will
result in injustice -matter remitted to magistrate for sentence.
2
JUDGMENT
[1] This matter came before us in the form of a special review referred by the
Chief Magistrate : Northern Cape in terms of s 304A(a) of the Criminal
Procedure Act 51 of 1977 {"the Act").
[2] Mr SE Ncube ("the first accused") was charged with four counts of rape and
one count of sexual assault. Mr AA Ntshwela ("the second accused") was
charged with one count of rape and one count of sexual assault. The charges
were in respect of the same complainant.
[3] Both accused pleaded not guilty to all the charges preferred against them, and
neither proffered a plea explanation .
[4] The state called the complainant and four further witnesses to testify. Both
accused testified in their own defence.
[5] After hearing evidence, both accused were convicted of one count of rape,
read with the provisions of s 51 (2) of the Criminal Law Amendment Act 105 of
1997 ("the CLAA"), as the magistrate determined that counts one to five were
one continuous act of rape. The second accused was acquitted on the charge
of sexual assault.
[6] The matter was subsequently postponed for the submission of a pre-sentence
report. The pre-sentencing report in respect of the second accused, compiled
by Mr. Booysen, the probation officer, inter a/ia mentioned that after the
accused were convicted, the complainant met the second accused during July
2023, and she apologised for implicating the second accused in the rape. This
conversation took place in public.
3
[7] The prosecution recalled the complainant to rebut this evidence. According to
the record, the complainant:
7 .1 Confirmed that she did not personally consult with Mr Booysen, but that
she responded to her questions via email;
7.2 Explained that subsequent to the conviction, she met up with both
accused at a tavern. While at the tavern, she saw Nosipho, her friend
Wendy's daughter, whom she assisted to purchase alcohol. When she
was standing at the bar, the second accused and she had a
conversation, and she asked him to meet her outside where they could
speak privately as she was very emotional , and she was crying. They
exited the tavern, and she asked the second accused why he and the
first accused had raped her as she wanted closure. The second
accused apologised to her. She replied that she knew that they had
been found guilty and that they would be going to prison for a very long
time. She told him that she would never forgive him for what he did to
her; and
7.3 Wendy informed her that Nosipho took a video of her interacting with
the second accused. Nosipho informed the complainant that she took
the video as the complainant was very emotional and she wanted to
show it to her mother. The complainant requested her to delete the
video as she did not want any rumours to spread, which she did after
numerous requests.
[8] When cross-examined, the complainant denied that (a) she told the second
accused that she did not anticipate that the accused would be convicted or
that she apologised to him; (b) she leaned on the second accused's chest
while she was crying; (c) the second accused hugged her. In addition, she
confirmed that she wanted Nosipho to delete the video as she did not want
people to know that she spoke to him.
4
[9] After hearing the complainant's further evidence, the magistrate sent the
matter for this special review. According to the magistrate, she is doubtful if
both accused were correctly convicted or that the conviction was in
accordance with justice. The magistrate opined that the conduct of the
complainant has shown "her to be a very dishonest character, it has shown
her to be a witness that can easily manipulate and fabricate a story". This
caused her to reflect on the verdict as well as her evaluation of her evidence,
which created "very serious doubt that the complainant's evidence is true
beyond reasonable doubt". The magistrate explained that she has concerns in
view of the following:
'What prompted the complainant to want to talk to the accused who was standing on
a queue?
This was an accused who just been convicted of a rape case against the
complainant.
She asked why he was standing close to her and further asked if he was fine. When
asked about this she said she was just being sarcastic.
As if that was not enough, she asked to talk to him outside in camera. She led the
accused and they both went outside the tavern. Leaving her friends who were at the
tavern and everybody who was there. Talking to the accused outside at night for
whatever reason is very strange.
Talking to a person who had just been convicted of raping her and talking to him in
private at night to get closure. If she wanted to confront accused 2 or if she felt the
urge to confront him, one would have expected that she would have done it in the
presence of people inside the tavern.
During her testimony she said, when talking to the accused outside the tavern, one of
her friends told her that Nosipho took a video of her and the accused. However, when
the court asked prosecution if that was not hearsay evidence, the witness interjected
and said Nosipho had told her that she took a video.
5
It is strange that complainant demanded for the video to be deleted instead of asking
for it to be forwarded for future use in the pending court case.
It is clear that the fact that there was a video taken troubled the complainant because
even though Nosipho had told her that she has deleted the video but that did not stop
the complainant from going to Nosipho's mother the next day pleading with her to
instruct Nosipho to have the video deleted.
To me, it is as if this video had captured the negative as alleged by accused 2 in the
pre-sentence report. Had this video captured something that would suit the narrative
of the complainant surely, she was not going to demand that it be immediately
deleted and to make sure that it was deleted, to go to the extent of going to Nosipho's
house the following day.
What was in the video that could have negatively affected the complainant or this
case? Unsettling her to an extent, that she did not believe that Nosipho deleted the
video but went to her mother asking her to instruct Nosipho to delete it.
I am now left with very strong feeling that I may have convicted innocent people as a
result of complainant's ability to pass whatever may have been lies as if it were the
truth.' [My emphasis]
Applicable law:
[10) Section 304A(a) of the Act, pertaining to a review of proceedings before
sentence, stipulates:
'If a magistrate or regional magistrate after conviction but before sentence is of the
opinion that the proceedings in respect of which he brought in a conviction are not in
accordance with justice, or that doubt exists whether the proceedings are in
accordance with justice, he shall, without sentencing the accused, record the reasons
for his opinion and transmit them, together with the record of the proceedings , to the
registrar of the provincial division having jurisdiction, and such registrar shall, as soon
as practicable, lay the same for review in chambers before a judge, who shall have
the same powers in respect of such proceedings as if the record thereof had been
laid before him in terms of section 303.'
6
[11] Section 304(4) of the Act therefore regulates the procedure for review after a
sentence has been imposed. S 304A provides for a review of proceedings
after conviction, but before sentence is imposed.
[12] Section 304A was introduced into the Act bys 22 of Act 33 of 1986 ("Act 33 of
1986") during 1986 in response to a call for legislative intervention by
Malherbe AJ in S v Seloke & andere 1 when he remarked:
'Die gevolge van hierdie stand van ons regspraak is onbevredigend omdat dit daarop
neerkom dat 'n landdros verplig is om vonnis op te le op 'n beskuldigde aan wie se
skuld hy ernstige twyfel het en wat hy, as 'eerste landdros', nie skuldig sou bevind het
nie. Dit is egter 'n geval waar die Wetgewer moontlik kan oorweeg om in 'n geval
waarop art. 275 van die Strafproseswet van toepassing is, dieselfde voorsiening te
maak vir hersiening voor vonnis as wat daar bestaan in die geval van
streeklanddroste ingevolge art. 116(3).'
[13] However, before this Court can intervene in terms of those provisions, it must
form an opinion that the proceedings in respect of which the convictions were
brought are not in accordance with justice. The learned authors Du T oit et a/2
confirm that the test for intervention on review before the case is finalised is
whether it would be unfair, and would lead to irreparable prejudice to the
accused, to permit the case to proceed. The learned authors emphasised that
's 304A should not be invoked merely to eliminate any doubt on the part of the
trial court. Similarly, s 304A should not be relied upon to dispose prematurely
of a case that might equally well and without prejudice to the accused be dealt
with on appeal or review after the imposition of sentence'.3
[14] Examples of irregularities that could result in a review in terms of s 304A inter
alia include (a) bias, malice or corruption on the part of the presiding officer,
(b) the admission of inadmissible or incompetent evidence or the rejection of
admissible and competent evidence;4 (c) the failure by a magistrate to
1 1983 (2) SA 455 (0) at 457 B -C.
2 Commentary on the Criminal Procedure Act, -RS 72, 2024 ch30-p24A (and the Authorities cited
therein).
3 Ibid.
4 See generally , section 22 of the Superior Courts Act 10 of 2013.
7
administer the oath;5 (d) a violation of an accused's fundamental right to legal
representation;6 (e) when an accused was charged with the same offence of
which he had previously been convicted of, and failing to raise the plea of
autrefois convict, is found guilty of the same offence; 7 and (f) where a
magistrate dealt incorrectly and inappropriately with an incomplete record of
the plea proceedings.8
[15] In S v Makhubele ("Makhubele")9, the court confirmed that s 304A of the Act
should not be applied so sparingly that it is reduced to a dead letter, but that it
is the bounden duty of judicial officers to give effect to it in those rare cases
where the continuation of a case to its conclusion will result in injustice.
[16] Kriegler J (as he then was), however, warned that:
'. . . Section 304A is to be interpreted in the context of the automatic review
procedure created by ss 302 -306 and 309(3) of Act 51 of 1977. In particular it is to
be noted that the test throughout is whether the relevant proceedings were or were
not in accordance with justice. Trivial irregularities or procedural imperfections are
immaterial; only where there has been a failure of justice, real and substantial
prejudice to the accused, are the proceedings liable to interference. By the same
token s 304A is not to be invoked in the absence of such a failure of justice.'10
And further:11
'Indeed, in the case of a review in medias res such as is envisaged bys 304A, the
test, if anything, is to be applied with even greater caution. For this there are a
number of reasons. First and foremost, piecemeal litigation is inherently undesirable -
interest rei publicae ut sit finis litium. The divergence of views evident in the cases
referred to in the above quoted passage from Hiemstra is largely ascribable to judicial
5 S v Anthony (SHF 27/14) [2015] ZAWCHC 30 (20 March 2015) ;2015 JDR 0542 (WCC); [2015] JOL
32994 (WCC). )
6 S v Mafika 2016 (1) SACR 623 (FB) paras 9 -10.
7 S v Msomi 2009 (1) SACR 441 (N) para 7.
8 S v Mentoor 2020 (1) SACR 104 (WCC) paras 15 and 21.
9 1987 (2) SA 541 (T) at 546 A-C.
10 Makhubele (Supra) at 545 A -B.
11 Makhubele (Supra) at p 545 B -H.
8
disapproval of untimely intervention and consequent prolongation and proliferation of
proceedings. Hence, also, the formulation of strict criteria even in those cases where
there was intervention before the conclusion of the case. . . . Furthermore, well
intentioned but ill-considered referral for review in terms of s 304A may well redound
to the detriment of the accused, he whom the presiding officer intended to protect
against injustice. For instance, weak-kneed second thoughts about the soundness of
a conviction may not be shared by the reviewing Judge acting, of course, after
consultation with the Attorney-General and with the advantageous perspective of
hindsight. In the result the matter may be fruitlessly prolonged to the prejudice of the
accused. Yet another consideration militates against an over-ready resort to the
procedure permitted by s 304A. It is founded in experience and common sense. If a
material irregularity has been committed, or a genuine and considered reappraisal
has been made resulting in a change of mind as to the accused's guilt, any resultant
injustice can always be remedied once the case is transmitted for review at the usual
stage, ie after sentence. After all, no irreversible finality is reached before then. Such
prejudice as may be caused to the accused by prolonging the proceedings may well
be exacerbated by the to-ing and fro-ing of a precipitate submission for review.
Finally, the dictates of justice, in contradistinction to legal niceties, are often, if not
virtually invariably, better served if the case as a whole is submitted to scrutiny on
review. At that stage one has a proper overview of the totality of the facts.'
[17] The court in S v K/aase ("Klaase'J12, confirmed the principles expressed in
Makhubele, and emphasised that s 304A of the Act was not to be invoked
merely to eliminate any hesitation on the part of the trial court, or to dispose
prematurely of a case which might equally well, and without unfair prejudice to
the accused, be considered on appeal or review after the imposition of
sentence.
[18] In preparation of this judgment, we came across two pre-constitutional cases
with comparable facts to the matter at hand. In S v Taylor ("Taylor')13, despite
his plea of not guilty, the accused had been convicted of the crime of theft. His
daughter later testified in mitigation of sentence and, in her evidence, had
disclosed facts which established, beyond doubt, that the accused had not
intended to steal. The accused had, thereafter , addressed the court and
12 1998 (1) SACR 317 (C) at 322 C -F.
131976 (4) SA 185 {T).
9
confirmed the facts as stated by his daughter. The Magistrate was of a view
that had the daughter testified before the closing of the defence case, he
would not have convicted the accused.
[19] In S v Shezi ("Shezi") 14 on a charge of rape, the accused had admitted sexual
intercourse but advanced the defence of consent. He was nevertheless
convicted of the crime of rape and, on a fair reading of the record, the
conviction appeared to be in order. In mitigation of sentence, he called his
uncle who testified that the incident had been reported to the council of the
township within which both the complainant and accused resided and that, at
the meeting of that council, a letter which had been written by the complainant
had been discussed . When the complainant was recalled and confronted with
the allegations about the letter, in response, though not conceding the
authorship thereof, she became extremely evasive in her answers to questions
put to her by the court. Besides, the prosecutor disclosed to the court that she
had confessed to one of the members of the prosecuting staff that she had not
been a virgin at the time of the incident, which apparently departed from a
previous confession to the contrary, which assertion had been essential in
supporting the conviction .
[20] Taylor and Shezi are of particular significance-not only because they are
"pre-constitutional " cases, but also because they were decided before the
current Act or the insertion of section 304A into the Act by section 22 of Act
33 of 1986. In both cases, the courts reviewed and set aside convictions
before sentencing by relying on their inherent powers to prevent illegalities or
gross injustice arising from the lower courts. Kriegler J in Makhubele stated
that Taylor is an illustration of exactly what the Legislature had in mind with
the introduction of s 304A into the Act.15
[21] In Taylor, the daughter's subsequent evidence in mitigation introduced facts
that unequivocally established that the accused lacked the intention to steal -
14 1984 (2) SA 577 (N).
15 Makhubel e (Supra) at p 546 C.
10
an essential element of the offence. These facts were also confirmed by the
accused himself. The State in Taylor also expressed the view that it would be
fair and just to set aside the conviction before sentence in light of the new
evidence. Importantly, this occurred at a time when no statutory provision
empowered a superior court to do so on review prior to sentence , and the
court had to invoke its inherent powers to avert an illegality or grave injustice.
Shezi, similarly, predates the incorporation of s 304A into the Act, and
the court there was also urged to exercise its inherent powers to avert an
illegality or serious injustice by reviewing and setting aside a conviction before
sentence. Following the evidence of the accused's uncle in mitigation and the
subsequent investigations surrounding a letter, the prosecutor indicated that
the State no longer had confidence in its case. An affidavit obtained from a
councillor confirmed that the complainant had admitted to writing the letter,
and it was further revealed that the complainant had told a member of the
prosecuting staff that she had not been a virgin at the time of the incident -an
important point which had previously supported the conviction . Thus, in Shezi,
serious doubt emerged as to the credibility of the complainant and,
consequently, the correctness of the conviction. There, as in Taylor, the new
evidence cast the conviction in an entirely different light, and the request to set
it aside was not only initiated by the magistrate but also supported by the
State. Importantly, in both matters, the subsequent evidence warranted the
setting aside of the conviction before sentence, with the support of the
prosecution in light of what had emerged.
[22] That said, it does not seem like the nature of the subsequent "allegations" or
"new evidence" that prompted the referral of this case to this Court for review
before sentence was in the nature of the subsequent evidence that prompted
the referral in both Shezi and Taylor. In our view, the review was referred to
assuage the unease of the magistrate and does not warrant the invocation of s
304A of the Act. The magistrate in this case referred the matter for review
because "I am now left with a very strong feeling that I may have convicted
innocent people." What transpired during sentencing seems to have no
bearing or connection with the pre-conviction evidence and the reasoning by
the magistrate . The magistrate has not pointed us to any irregularity that may
11
have occurred during the proceedings to warrant a review of the proceedings
before completion . Neither was it alleged that inadmissible or incompetent
evidence was relied upon. This is one of those matters where piecemeal
adjudication is discouraged. We, at this stage, do not express an opinion on
the correctness or otherwise of the conviction. That is the matter to be
considered by the appellate or review court in appropriate proceedings . We
do, however, caution against relying on matters extraneous to the proceedings
to refer proceedings that are incomplete to this Court for review.
[23] In the result, the record is referred back to the magistrate to finalise the
proceedings .
TLALETSIJP STANTON J